18 December 2008

LEGAL - Court upholds bully claim against Workplace

Court upholds bully claim against Hepburn Shire Council

A COURT has upheld a claim of bullying brought by a former Hepburn Shire Council receptionist against her employers.

Robyn Haintz, of Musk, will receive eight months of compensation at the salary she was employed at from June 20, 2007, to February 1, 2008, along with ongoing compensation from that time at a rate to be negotiated.

The council will also have to pay reasonable medical expenses and court costs.

The decision was handed down in Melbourne Magistrates Court on Monday after the case was heard in Ballarat Magistrates Court two weeks ago.

During the case, the court heard that Ms Haintz had been diagnosed with anxiety and depression arising from her work with the council and would continue to need medical treatment and counselling.

Her lawyer, John O'Brien, said the council had failed to take reasonable action and Ms Haintz's stress was exacerbated by an ignored grievance notice.

The council's organisational development manager Robert Knight admitted that nothing had been done about the notice in which Ms Haintz described how upset she was about a memo issued in November 2006.

The memo covered issues relating to Ms Haintz's duties including customer service and following procedures.

Mr Knight told the court that Ms Haintz's supervisor Linda Campbell was very caring and considerate while another woman, accountant Kathy Attwood, had a "very direct style".

Representing the council, lawyer Michael Richards told the court allegations of bullying and harassment were denied and described Ms Haintz's work as inadequate and leaving "a lot to be desired".

On Monday, Ms Haintz's father-in-law Allan McLeod said his daughter-in-law had been "treated badly" and "damaged by past mismanagement".

"It has been a 16-month fight to get the truth out of the council and we had to go to court to get that truth revealed," he said.

Mr McLeod said he hoped the outcome would prompt changes within the council to prevent further bullying.

"We will also be asking for a formal apology - Robyn would like that," he said.

Mr Knight said on Monday afternoon that he was unaware of the decision being handed down and "preferred to read it before I comment".

source: TheAdvocate

16 December 2008

NEWS - Bullying is rife in Australian Workplaces - COMMENTS

REVELATIONS of high school bullying have sparked debate among readers over intimidation and harassment in the workplace.

A Trends in International Mathematics and Science Study found bullying in Australian primary schools is in the worst category in the world.

More than a quarter of Australian Year 4 students said they had suffered bullying, according to the study.

Expert Evelyn Field yesterday responded to news that Australian students were among the world's worst bullies by stating office bullying was even more rife.

Tells us of your experiences below.

One AdelaideNow reader described how "the terrible impact" of workplace bullies drove her to quit her job.

"Passive bullying is the worst and very hard to challenge," she wrote.

Cyber bullying - via the internet or mobile phones - also was a concern.


I was bullied in the workplace for two and a half years until I was retrenched. I just refused to leave so they had to retrench me. The problem with placing a complaint to senior management was they are involved in the bullying as well, but worked behind the scene leaving others to done their dirty work. This will be a cost that will flow on to Workcover and the Government should take steps to stop this by giving large fines to business and Government Departments/Agentices who fail to stop workplace bullying.

Posted by: Also in a better place of adelaide 4:04pm today
Comment 39 of 39

Several of us within the store have suffered at the hands of the most awful bullies ever.Some of us got set up for stuff that should of only had a warning , but instead they lost thier jobs and the rest of us had to leave because of the bullying and evil behaviour within the store.this is a big well known furniture and electrical company, who put frannchisses in, run each department as a seperate business so as the franchissee always has less than 100 employees and you cant take them to a tribunal....very clever. The authorities are unhelpful and pass you from one department to another and no-one is interested,Bullying is a massive problem in Australia, and so many people loose thier jobs because of it.Corruption within companies is huge and you cant go to anyone, because the bosses tip off the culprits and then the bullying just gets worse and more underhand,you know whats happening but you just cant get any help whatsoever.You cant fight it in the end.You know if you dont leave, they are going to set you up for something.Come on Australia, you are the only country where this is tolerated, and no-one wants to know

Posted by: cd of 7:44am today
Comment 38 of 39

Bullying in SA primary schools in the worst category in the world.....this came as no surprise to me! My yr 8 son was a constant victim throughout his primary school years (not only by his peers but also adults in teaching roles) & any form of retaliation was rewarded with suspension for him while the bullies remained in class. The bullying continued into high school.......with my son and three friends threatened (warned they would be bashed at lunch time) by a group of approximately 20. Lunch time duly saw one boy on the ground being kicked by 5 or so of the bullies. My son and mates were way out-numbered and new there was little point in trying to flee so fought back as best they could. Result......three boys suspended and one excluded for ten weeks. That was the four who were set upon by the large group. Given the warning, they had armed themselves with 'protection' from the schools tech area and although it remained unused, possessing a weapon (for protection purposes & obtained within the school grounds) was considered a far worse offense than kicking a person already on the ground. I consider my son to be very lucky.......he was excluded for 10 weeks......he became a much happier & healthier teenager within half of that time.....he will not return to school....EVER.....his Mother has had enough!

Posted by: Lyn Hamilton of Northern Suburbs 6:35am today
Comment 37 of 39

Some years ago I worked for a charity and the director was an absolute tyrant. She was so bad that a staff meeting one day she told us that we needed to do weekend collecting to generate finance for our pay.

Posted by: Margaret of Farside 10:19pm December 15, 2008
Comment 36 of 39

Karen of the Murraylands, I agree with you on the bullying of Foster Carers by Social Workers and District Office Managers, and is well known at that Office, no wonder they cant get Foster Carers, and keep children in B&B and hotels and Motels. The job of Foster Caring is hard enough without being bullied by ill informed people, with one agenda. Its time the new Minister Rankine had an enquiry into it before we lose too many more, or will she send it back to them to sort out themselves. Caesar investigating Caesar. HMMMMMMMM!

Posted by: Kenofthe Country of 9:43pm December 15, 2008
Comment 35 of 39

Bullying is rampant. There is NO area that shows it as a bad example. Governments no longer 'govern'; they bully and dominate. It is a classic lesson to society that bullying is OK. because they (Gov) go unchecked. Bullying in schools-not dealt with; ignored or denied. Bullying in the workplace-Public OR Private- not dealt with; ignored or denied. And in most cases, what makes the situation dramatically worse...is that the victim is blamed!! I am now a Senior and retired;-but I will NEVER forget what happened to me. My heart goes out to those of you still coping with these vile creatures. It WILL continue, because nothing is done to stop it.

Posted by: Lucrezia Poppins of 8:22pm December 15, 2008
Comment 34 of 39

Yes, workplace bullying is alive and well in the SA Public Service. And if you end up making a complaint, it is totally whitewashed and your are blamed! The bully is promoted. It's about time the policies that departments put out, that sound all so great, are actually put into action. Workplace bullies should not be tolerated, but they certainly are at present. I work in a department which is easily up with the worst offenders for complaints of this sort, but it takes a lot of courage to take this step, and not everyone can do it.

Posted by: Ruth of Adelaide 3:57pm December 15, 2008
Comment 33 of 39

Workplace bullying is alive and well because it is so covert and in my experience it is the boss (a Christian school principal) who nearly destroyed me. Insiduous comments, constant putdowns, withholding information and communication and the list goes on while he smiled at the world telling al that he was a great guy. Creep. Lodging a complaint is not easy either as the board Chairperson just went straight back to the Principal to tell him there was a problem and could he have a look at it and work it out. this meant more bullying. Unfortunately the boy's club is as strong as ever and this creep was supported at all levels of the food chain.

Posted by: Creeps in the workplace of 3:31pm December 15, 2008
Comment 32 of 39

Volunteer Foster Carers are always Bullied here In Murray Bridge Families SA Office, Hon Jay weatherill did not help us , Jennifer Rankien won't either. Some Social workers spoil it for all the good ones. Why don't they just do their job, instead of worring who's going to be top dog.

Posted by: Karen of Murraylands 3:27pm December 15, 2008
Comment 31 of 39

The problem can be traced to school where despite great efforts to counter bullying, very little headway is being made. Could it be wrong-headed, inflexible ideology which is to blame? When I went to school in the early 1970's my parents, uncles and grandparents all at some point told me: "Never hit anyone, but if a child hits you, hit them back twice as hard." Can you imagine giving this advice in today's cloying world, where children are taught from day 1 to appeal to the authorities (teachers) in each and every case? I had to apply this time-honoured rule when I came to Australia as a nine-year-old in 1975. Three boys in my grade 5 class thought me an easy target and threatened and harrassed me over the course of a few days. I knew the school rules even then, were that i should "dob on them". Instead I retaliated and gave one of these fellow nine-year-olds a bloody nose. The principal lectured us both sternly, but wisely did not punish us. The outcome? I regained some confidence, and as often happens in cases like this, became good friends with my former attackers. It took 10 minutes of everyone's time, and a lifetime of wisdom. Contrast that with today's dominant ideology which seems to be that retaliation (without involving authority) is bad terrible, awful! I feel we need to take stock of this belief and ask ourselves what the consequences are. Is it not obvious that retaliation is THE most effective means of dealing with an aggressor? Increase the cost and the risk to the aggressor. This retaliation either involves authorities, or it does not. Where it does not involve authorities, the retaliation can often be more swift, and more effective. It should be up to the individual to decide. All we can ask is that authorities (schools, HR, tribunals) show some recognition that direct retaliation, used judiciously, can be a very effective adjunct to treating conflict. We are in a society where resources are stretched, and where the expectation of authoritarian intervention is so ingrained that a sense of helplessness has infected many of us. What I am saying is this: Don't take it. Don't take it to the authorities. Fight your own battles. Make sure the cost to the bully is high. If you rely on the authorities to fight your battles for you, you are just a different kind of victim.

Posted by: AGF of Adelaide 3:23pm December 15, 2008
Comment 30 of 39

It seems the common way these days is emotional bullying. I work for a large National company that has the Head Office based here. There are 3 words that the company live by, Manager has obviously never read them as she gets in the lift. The nit-picking at little things, the talking to other manager/staff about performance or being labelled a "trouble maker" because my views and decisions are either diferent to hers or correct. My Manager even has a go in Team Meetings. One day she was quite obvious about it, I told her where to go and left the meeting. That afternoon, I addressed the issue with her Manager and was told "Let's give it 3 months and see how it goes!" Under the carpet that went. Another example of Management not having the "balls" to deal bullying and harrassment. 3 months after that my Manager and I had a heated arguement, I handed in my resignation. Now I can look forward to staying at home with my newborn early next year. A much more rewarding position.

Posted by: adelaide cbd of sa 3:23pm December 15, 2008
Comment 29 of 39

And when you do meet & speak with the Equal Opportunity Commission (EOC), ask the officer about a mediated settlement and if it can be enforced by the EOC. In my experience, use the legislation, post mediation, to get through to the Equal Opportunity Tribunal in the District Court. You got a better shot at justice, though it is a difficult and arduous trek. Personally, I found the EOC impotent and way too quick to tell me to move on for the sake of my health.

Posted by: Rob of Wynn Vale 3:06pm December 15, 2008
Comment 28 of 39

To get me out of here. A lot of mobile telephones have the ability to record conversations. If yours has this ability then use it to record what he does and says. If he touches you, make sure you state it clearly for the recording that you do not want him to touch you. DO NOT give the original recording to your HR department. Instead, make a copy and take it to them. Insist that you want them to ensure that he bahaves legally. Retain the copy for future use. It is unfortunate to have to do it this way; but it is the only way such perpetrators understand

Posted by: George of Gawler 2:56pm December 15, 2008
Comment 27 of 39

To 'Get me out of here' (comment 22), you should have an informal chat with SA's Equal Opportunity Commission or secondly, the Employee Ombudsman. Both have web-sites and they also have case officers who could help you.

Posted by: Roman of North Adelaide 2:38pm December 15, 2008
Comment 26 of 39

It's a bit hard to have the workplace bullies stopped when you are age 14 and they(bullies) are star workers,older and friends of the boss.I eventually found the courage to run away from them and it was only due to luck that I found another job before my dominating mother found out,as she was the one who pulled me out of school and shoved me into a workplace which should have been anyones dream,but instead it turned out to be the workplace from Hell.

Posted by: Workplace from Hell of Hell 1:13pm December 15, 2008
Comment 25 of 39

I too have had this happen in the public service. I noted all the dates and times of what had happened and after about three months took it to my supervisor. This bully had done this before to a colleague, I saw it build up until he physically assulted her. Her got a warning from HR. When I went to my supervisor they told me not to get HR involved because it made everything too hard to sort out. He probably should have been arrested for what he did the first time.

Posted by: Kristy of Here 12:48pm December 15, 2008
Comment 24 of 39

Compared to what used to happen, especially in blue collar workplaces the bullying today seems to have a far more emotional form. As a 17 year old in the late 70's, working at a then leading crash repairer, I was subjected to what must be described as bullying to the extreme. Imagine having your car vandalised constantly, having your work sabotaged, constant verbal abuse and humiliation and as the ultimate degradation bound a slung up on a tackle to be coated with tar and floor sweepings. While I was distracted by all the excitement my wages along with Xmas bonus were removed from the pocket of my pants that had been earlier removed........all great fun at my expense. The owner who incidentally has just been awarded a medal for his 'heroic' efforts in Vietnam was totally unsympathetic to the events as was the manager at the time. As for a reason for the bullying, the best I could think of was that I didn't head on down to the pub on payday to blow my pay packet. Bullying doesn't happen to everyone but for those it does happen to it is a very stressful experience. For me it helped make me a stronger person emotionally but for others it becomes something they never recover from and in the most tragic cases ends in suicide.

Posted by: Nigel Morrell of 12:41pm December 15, 2008
Comment 23 of 39

I am female and I need help. I enjoy my job except my boss is sleazy, he gets all touchy feely with me one day calling me pet names and touching me, then the next he ignores me and criticises me on everything i do.....I want to say something to someone but it will make it so hard for me to still work here......

Posted by: Get me out of here!!!! of 12:41pm December 15, 2008
Comment 22 of 39

I stood up against work place bullying.....and never worked for that company again. The self admitted bully is still there though.......

Posted by: Anon of 12:31pm December 15, 2008
Comment 21 of 39

Yes, I have been bullied many times in the workplace over the years, including my current workplace. Many times, in various jobs, including this one, management have called me in over many and bizarre issues. The bullying officially stopped when I saw a Lawyer and got them to write a letter to management. I am nobody's easy target.

Posted by: w of 12:10pm December 15, 2008
Comment 20 of 39

Managers and Owners need to wake up to the fact that if they want to identify the worst performers in their businesses/organisations, they should start with the bullies. By the same token there needs to be some community clarity around what constitutes workplace bullying - there are too many employees that think they are being bullied because their supervisor or manager is holding them to account for performing their jobs properly.

Posted by: Rob of Houghton 11:43am December 15, 2008
Comment 19 of 39

There is hope ! I fought workplace bullying from 2000 until recently when I resigned. Suffice to say that the two 'top dogs' of the State Government agency in which I worked are now GONE!!! Yep, I paid a price, and yep I struggled through the Workcover process TWICE. All I can say to victims is to never, never give up. I got there, in the end. But it is not for the fainthearted. And don't expect much, oopps any support from the PSA or the Government itself. Weak as soap suds.

Posted by: Rob of Wynn Vale 11:39am December 15, 2008
Comment 18 of 39

Bullying is at an all-time high in the State Public Service. Even our current Premier was embarrassed after he discussed the issue at a conference and the media picked up the story. Yet the bullying continues unabated, and is often encouraged by those at the most senior of levels. Of course, monitoring is minimal to non-existent to keep the issue off the radar.

Posted by: Roman of North Adelaide 11:32am December 15, 2008
Comment 17 of 39

I am a female and I have been bullied by the local workplace bully (a mate of the owners). He not only continually bullied me but also the younger men that Used to work for that Company. Not only was I constantly bullied to tears, I could not approach Management as they were "mates". Then to top this off, the Manager used to have weekly sex talks to me. No wonder I left, but they made me work two extra days and threatened to take my pay from me.

Posted by: In a Better place of now 11:24am December 15, 2008
Comment 16 of 39

School yard bullying happens every day. My granddaughter attends a private school and each day older children intimidate the younger ones by asking them for money. This is a daily ritual and yes the teacher has been made aware of it. Teachers should be stamping out this practice. Each week teachers should be announcing to their class what behaviour is unacceptable and will not be tolerated. All children need to hear and know they do not have to allow this intimidation to continue.

Posted by: Anon of Adelaide 11:20am December 15, 2008
Comment 15 of 39

I suffered bullying in the Commonwealth Public Service. Management is very careful about what is seen and what is heard. I did visit the manager to complain about bullying and at the end of the session her note paper was BLANK. She chose not to document anything. I was made to feel as though I was the one creating issues. I could not afford to fight the system, who has the money to pay hefty lawyer fees. After two years of character assassination I walked out of the building to never return. The nasty people may think they have won, but I believe in karma. I am happier now but saddened that I gave them twenty years of loyal service only to be swept out the door.

Posted by: Anon of Adelaide 11:18am December 15, 2008
Comment 14 of 39

adelaide cbd of sa I think I have had a similar experience to you with a boss in the same age group. Bullying in the workplace doesn't have to be obvious - it can be sneaky and persistant in a way that means it takes you a while to realise you are the victim of a bullying manager. I left my workplace because of my manager but she has now follwed me and is one of my bosses once more - Im dreading the consequences. I too work in the public service and love my job but there are a lot of people around who wouldn't still be employed if it was private business!

Posted by: C of Northern Suburbs 11:16am December 15, 2008
Comment 13 of 39

I agree that bullying in the workplace in rife in the SA Public Service. I experienced considerable passive bullying by a psychiatrist I worked for and HR officer whilst working in a local hospital and also by two paid staff of the Country Fire Service. Of course, I was the one who was dispensable as I was the least qualified and in the latter position temporary. I have been told by several people in the workplace that my work is excellent and I am "ahead of my time" for the Public Service. This gives some indication of the dead wood and poor leadership currently managing our public service. Passive bullying is the norm in some areas and is very difficult to prove. I have given up and through these experiences I am now looking at the rest of my life on a disability pension which places more of a drain on this states resources.

Posted by: Heather Hardy of Mount Barker SA 11:10am December 15, 2008
Comment 12 of 39

Its not just government, I've been the victim of bullying in the private sector. As in the article, passive bullying (such as exclusion) just isn't taken seriously by employers, even when its specifically detailled as bullying behaviour in their company policy. When I complained to my previous employer, I was sent to an occupational psychologist as if it was me causing the problem, and no other action was ever taken. When I continued to complain, my contract was paid out and my employment terminated.

Posted by: Sara of Adelaide 11:07am December 15, 2008
Comment 11 of 39

Workplace bullying is a real problem, at my previous job I resigned and gave a month's notice.. during my last four weeks constant remarks were made by my boss about still needing to put in an effort despite leaving and that I should still care about my work and also generally picking at my decision to leave to the point where I took 3days off in my last week as the bullying had gotten too much. Not called for and there was nothing I could do because her boss simply waved the issue off when approached by me. There needs to be somewhere to go to report this kind of behaviour

Posted by: ex employee of radelaidia 10:37am December 15, 2008
Comment 10 of 39

It is very difficult to prove bullying. For instance it is not considered bullying if a manager does not follow procedures. At the Gawler Health Service, managers are allowed to instruct employees via mobile telephone text messages that the employee is not to return to work. The CEO of Country Health SA considers this to be "special leave with pay". When this type of activity is entrenched, then bullying will never be stamped out.

Posted by: George of Gawler 10:34am December 15, 2008
Comment 9 of 39

My daughter worked as a teacher for DECS.It was the most disgusting and demeaning experience that she had to experience.It became apparent to her that unless you acquired an attitude of grovelling and being grateful,the system was just not interested in you.Methods employed were indifference,delays in getting paid,support not forthcoming from the management with behaviour problems,threats of distant locations and disadvantaged schools,inability to communicate with employer and union impotence.Thankfully,like many others,she found another job but her training and talent were wasted.

Posted by: Ruth of Adelaide 10:20am December 15, 2008
Comment 8 of 39

The SA Public Service must be among the worst places for passive workplace bullying. In a State where it's not easy to find well-paid professional work the public service is a good option. Unfortunately once people get in they never want to leave and they do little else but protect their spot in the chain so they can pay off their mortgage as quickly as possible. This means anyone who's different, or with slightly controversial ideas, is identified as trouble and knocked into line or knocked out. Tick the right boxes and contribute nothing interesting and you'll have a safe, lack-lustre, well-paid career where you spend a lot of energy keeping others in their place below you. Following six years of being harrassed by two bosses in the SA Public Service, one after the other, my career is again progessing nicely and I enjoy my work. I moved interstate earlier this year. The first boss in SA gossiped incessantly behind my back sprouting untruths about my previous international work experience. This planted seeds of doubt about my integrity with colleagues and superiors. He was too busy comparing himself favourably to me, and trying to set others against me, to actually get on with his job. The next boss only bothered to say hello when she needed a task completed, or wanted to talk about her expertise rather than show it. She was reluctant to engage with talented staff so she could feel assured about being removed from - above - them. I hated that job, yet knew there were few options elsewhere for me in SA; none I dare say that would've paid as well. The SA Public Service needs much improved leadership so it can inspire and reward people to be innovative, and weed out self-serving dullards who ultimately undermine a brighter future for SA. Nurturing bright people would be a useful first-step towards better supporting the SA Government do more about attracting bigger business and curbing SA's brain-drain.

Posted by: KJAX of NSW 9:53am December 15, 2008
Comment 7 of 39

Indeed is. My manager is an over 50 female. Doesn't like admitting her mistakes and takes it out on me and others. No wonder everyone else is moving up in the ladder and she's still on the same rung. It is hard to establish a career that I enjoy to the point where I've given up.

Posted by: adelaide cbd of sa 9:51am December 15, 2008
Comment 6 of 39

Yes, very true. The public service use to conduct a climate survey in its workplace. Because it didn't like the responses it hasn't conducted one now for a couple of years and doesn't intend to. Bullying was one of the problem areas identified that they never addressed.

Posted by: M Bund of Adelaide 9:35am December 15, 2008
Comment 5 of 39

A friend of mine lost her job last year through bullying. She is being treated like dirt by Workcover. Workcover told her that her employer was a "nice person". She said "you don't know them". Workcovers reply "we don't want to hear that". The bullies still have their jobs. See this girls story on This Day Tonight website from last year "Toxic emails". Your paper should follow it up if you are serious about the bullying issue.

Posted by: Anon of Adelaide 9:18am December 15, 2008
Comment 4 of 39

As much as WorkPlace SA efforts in dealing with bullying issues, I found WorkCover the worst offenders in dealing with injured workers!

Posted by: Jafa of Adelaide 9:07am December 15, 2008
Comment 3 of 39

As a 53 year old male, I have been forced to quit my job, abandon my small town country lifestyle, sell assets and relocate to a larger regional centre to get away from a workplace bully. My wages have dropped, my house rent has doubled but my mental, emotional and physical health are improving now that I don't have to face the abuse, intimidation and humiliation of the former work site. I raised my complaints with senior staff but the issue was swept under the carpet & I was made to feel guilty for voicing my concerns. Workplace bullying is alive & well and tolerated because its too hard to deal with and reflects poorly on senior management if it is acknowledged. 3 out of 4 members of my previous work team have quit since October 08, but the bully retains their position.

Posted by: Steve Woolley of Whyalla 9:02am December 15, 2008
Comment 2 of 39

10 December 2008

European Paper on Women & Violence at Work

One person in 10 has suffered from some form of bullying, harassment or violence at work. The most vulnerable are women and those who work on temporary contracts although men are also vulnerable in the workplace. On 27 November 2007 the European Parliament's Committee on Women's Rights and Gender Equality held a hearing to discuss the level of sexual harassment at work. The hearing brought together experts in the field and MEPs from across the political spectrum.

The European Foundation for the Improvement of Living and Working Conditions published a background paper to support this special hearing.

The paper sets out some of the findings from the most recent EWCS data collected in late 2005. It is based on interviews with nearly 30,000 workers in 31 European countries, including all of the Member States. It looks at the data primarily in relation to psychological as opposed to physical forms of violence. In the survey, the question on bullying refers to ‘bullying / harassment’ while the question on exposure to ‘unwanted sexual attention’ in the previous twelve months is used as a proxy for sexual harassment. In order to simplify the presentation, this paper differentiates between workplace ‘bullying’ on the one hand and ‘sexual harassment’ on the other. These are distinct and quite separate phenomena but working women are exposed to a higher risk than men for both and the survey is used to investigate some of the reasons why this is the case.

Certain sectors, such as health, education and hotels/restaurants, show high levels of bullying and harassment. The report recommends that it is therefore appropriate to consider specific interventions in designed for specific employment sectors to combat psychological violence. Such interventions should take into account that many of the sectors affected have an over-representation of female employees.

Read more from the European Parliament

Read the background paper

information : Australian Assoc of Social Workers
source : IFSW

02 December 2008

2008 Round Up - The Rise In Damages For Discrimination

Australia: The Rise In Damages For Discrimination

14 October 2008
Article by Rick Catanzariti

A string of recent cases has led to some very large agreed settlements, amounts claimed and damages ordered in the discrimination arena. The cases highlight an apparent significant upward shift in monetary compensation that needs to be factored in when faced with discrimination claims. It serves as a timely reminder to businesses of their employment responsibilities and the consequences of not getting these decisions right. While the trend is evident in Australia, it may be the case that Australia is following the lead of other jurisdictions overseas.

We look at some of the cases that reflect this trend.

Australian Cases

Christina Rich v PricewaterhouseCoopers

On 28 March 2008 Christina Rich, a former PricewaterhouseCoopers (PwC) partner, walked away from the settlement of a long-running discrimination dispute with her former employer for a reported $5 to $6 million. Initially, Ms Rich sought $11 million in damages.

Ms Rich initiated legal proceedings in 2005 against PwC with allegations of discrimination, harassment and bullying. At the time, Ms Rich earned close to $1 million a year as the highest paid female partner at PwC in Australia.

In the proceedings Ms Rich alleged that partners of PwC had unlawfully discriminated against her in breach of the Sex Discrimination Act 1984 (Cth). She alleged that between 1999 and 2004 repeated sexual harassment went unchecked and her complaints about discrimination were not taken seriously.

Ms Rich's allegations against PwC included that a partner felt her breast and another, her immediate boss, repeatedly invited her to his hotel room during a conference in 1999. Her immediate boss also adopted a practice of greeting her with a kiss, despite her objections. In November 2001, after a work function and in the presence of colleagues, she claims another partner pushed her against a wall, forcibly undid her bra and felt her breasts. In February 2002, during a discussion about her success with clients, she alleges another partner said 'that's because, Christina, they are talking to your breasts'. PwC denied the claims at all times.

Fiona Dunn v Perpetual

On 31 March 2008, only three days after Christina Rich settled her proceedings with PwC, Fiona Dunn, a former senior employee of funds management firm Perpetual, commenced discrimination proceedings in the Federal Court against her former employer. Ms Rich was seeking $1.2 million in damages for alleged discrimination under the Sex Discrimination Act due to her pregnancy.

Ms Dunn was earning $672,000 a year before she went on maternity leave in 2007. She alleges she was bullied and ignored while pregnant, and that her job was made redundant while she was on maternity leave. Among other things, Ms Dunn alleges that a former Perpetual senior executive complained that there were 'too many women of child-bearing age' at the firm. Ms Dunn said the executive told her she did not need to return to work after the birth of her child, because her 'husband could support her'. Further she alleges it was said to her, 'if women want to compete with the men, they have to play like the men'.

Ms Dunn believed she was subjected to stress, anxiety, professional humiliation and bullying after she became pregnant and claimed to have been the subject of 'blatant and unashamed discrimination' by Perpetual, a company which she says had an 'unhealthy boys club culture'. Perpetual have so far denied Ms Dunn's allegations.

While the case continues in court, it will be of considerable interest to see how it resolves, considering it bares a number of similarities to Christina Rich's complaint against PwC.

Caroline Tan v Chris Xenos

On 11 April 2008, the Victorian Civil and Administrative Tribunal ordered its largest ever payment for compensation, an amount of $100,000, against an individual respondent in a sexual harassment case in Tan v Xenos (No. 3) (Anti- Discrimination) [2008] VCAT 584.

The complainant, Dr Caroline Tan, was a third year neurosurgery trainee at the Monash Medical Centre. In August 2004, Dr Tan rotated into a team that was headed by neurosurgeon Dr Chris Xenos. Dr Tan came to develop a close professional relationship with Dr Xenos and would discuss her development in training with him. In January 2005, Dr Xenos started inviting Dr Tan to his private rooms for extra tuition. On 15 February 2005, Dr Tan arrived at Dr Xenos's rooms after she had finished work that evening.

In the proceedings Dr Tan alleged that on 15 February 2005 Dr Xenos led her into his room by the hand and when she turned her back he approached her from behind, turned her around and embraced her. Dr Tan further alleged that Dr Xenos then kissed her on the lips, touched her inappropriately and indecently exposed himself to her. Dr Xenos denied that he had sexually harassed Dr Tan, and claimed that Dr Tan had fabricated the allegations.

The Tribunal preferred Dr Tan's evidence over that of Dr Xenos and found that Dr Tan was sexually harassed by Dr Xenos. The Tribunal ordered that Dr Xenos pay Dr Tan $100,000 for general damages. In making the order, the Tribunal considered that Dr Xenos was in a position of power over Dr Tan and was in a position of great influence as to her qualification and her future career.

While in a different employment context to the cases of Christina Rich v PricewaterhouseCoopers and Fiona Dunn v Perpetual this case is a warning to parties of the willingness of tribunals to award significant damages in discrimination cases. In calculating the damages, Her Honour commented 'it is true that the incident itself is not the worst one can imagine of sexual interference with another person', however, Her Honour went on to conclude that 'the award of damages in this case must be substantial'.

Overseas Cases

The following cases reveal the compensation claims being talked about in Australia are starting to resemble the overseas experience.

Switalski v F & C Asset Management

In early 2008, Gillian Switalski, the former head of legal at F&C Asset Management in the United Kingdom, claimed that sexual discrimination, harassment and victimisation at work had left her unfit to fulfil her role upheld by the Central London Employment Tribunal. Ms Switalski is now seeking an astounding £19 million (A$39 million) in damages from her former employer as compensation.

The claim arose after Ms Switalski left her £140,000 a year job in September 2007 after her manager criticised her for choosing a flexible working pattern which was designed to help her care for her two sons, one of whom has cerebral palsy and the other who has Asperger's syndrome. Ms Switalski's manager was shown to have a particular difficulty in working with women and appreciating Ms Switalski's requests for flexible work.

Morgan Stanley

In 2004 in New York, Morgan Stanley, a Wall Street bank, paid a settlement to several women of US$54 million (A$73 million) for workplace discrimination and sexism. Allison Schieffelin, a former bond saleswoman with the company, received US$12 million (A$16 million) of that.

Ms Schieffelin alleged she was denied a managing director's post because she was a woman and was fired in retaliation for filing her discrimination complaint. She accused the firm of destroying her career. Morgan Stanley, as part of the settlement, denied any discrimination.


With sexual harassment and discrimination claims and awards of damages on the rise it is important that employers take reasonable precautions or steps to prevent unlawful conduct occurring. Employers should ensure they have up-to-date policies that have been implemented across their business and all staff have training.

With no compensation cap in most discrimination jurisdictions, discrimination proceedings are attractive, particularly to high earning individuals or individuals with potential high earnings. In our experience effective complaint management policies and processes when coupled with keeping in touch with your workplace culture and environment, can be effective in protecting your business.

Who are Bullies ? Profiling - Three Types of Bully

New research has also found that there's not just one kind of workplace bully. 

According to Keryl Egan, a Sydney-based clinical psychologist of Stormont Consulting, bullies fall into three main profiles: 
  • the accidental bully,
  • the narcissistic bully,
  • the serial bully
The Accidental Bully
Egan describes the accidental bully as emotionally blunt, intelligent, confident, successful, aggressive and demanding, expecting a lot of the people working around them. "This person is task orientated and just wants to get things done, tends to panic when things are not getting done, and goes into a rage about it. This person is basically decent, they don't really think about the impact of what's happened or what they have done. They are responding to stress a lot of the time." Importantly,
They don't listen to others, always feel they're right and, when the pressure is on, they lose their temper — but have no idea how their behaviour hurts the people around them. In other words, their bullying is not premeditated. "The destructive bully is narcissistic. They see any competition or threat as a serious assault and they go into a rage," says Egan. "They feel entitled to positions of power." So they bully because they can.
Egan believes this type of bully can be trained or coached out of the bullying behaviour.

The Narcissistic Bully

They are grandiose and has fantasies of breath-taking achievement. "This type of bully feels they deserve power and position. They can fly into rages whenever reality confronts them. This person is very destructive and manipulative, they don't set out in a callous way to annihilate any other person - it's purely an expression of their superiority."

The Serial Bully
The most dangerous type of all "who has a more sociopathic or psychopathic personality. The Serial bully is intentional, systematic, and organised and the bullying is often relentless. They usually get things done in terms of self interest, not in the interest of the company." Egan's serial bully employs subtle techniques that are difficult to detect or prove and training or coaching is always unsuccessful; simply, the serial bully is often:
  • grandiose yet charming,
  • authoritative, aggressive and dominating,
  • fearless and shameless,
  • devoid of empathy or remorse,
  • manipulative and deceptive;
  • impulsive, chaotic or stimulus seeking; and
  • a master of imitation and mimicry.

It seems women are particularly effective at this kind of behaviour. They intentionally hurt colleagues and revel in the pain they cause. "The psychopathic bully is very good at showing one face to the boss and another face to the people below them," explains Egan. Her research says it can take two years for a psychopathic workplace bully to be exposed.

"They isolate their target so that person doesn't have a support network. They manipulate the victim's workload and working conditions and make unrealistic demands and unpredictable decisions. One minute they praise, and the next minute they criticise. They isolate or ignore their victim and the bullying is systematic and relentless. They have a complete lack of empathy."

Egan says most people become psychopathic bullies because of a damaged childhood. They've usually been bullied themselves by uncaring parents or been emotionally neglected. They're incapable of having compassion for anyone else because they didn't receive love and care themselves.

Sally says whenever she's been generous in life people have taken advantage of her. "Sometimes I feel bad when I see the girls at work in tears. I see how they look at me when I arrive at work — they're afraid — but if they're afraid of me, they're not going to take advantage of me. Being soft doesn't get you anywhere."
*Names have been changed.

I don't think people should approach a psychopath on their own if they're being targeted because the bully will expertly reframe everything and say that they're being bullied. The bully will say that they are the real victim of their target's incompetence or they may say the target is paranoid and not performing. This kind of bully is so convincing they often get promoted and the target has to leave or goes on stress leave.
If everyone around a target is silent or withdraws, the victim does not have a hope, the best thing for them to do is to get out. But if colleagues are supportive and aware, start to listen and really look into what is happening, take the distressed person seriously and act as a team then it's an opportunity for growth and to change things.
So what you need to do is be smart, really think about how to handle it and have the courage to support your workmates or colleagues if they are being targeted. You need to encourage the people you work with to do likewise. However, there's no point in being courageous and getting out there and taking brave steps if you haven't thought it through because these people are smart and they'll turn it around so it looks as if there's something wrong with you."
Reference: Safety Reps Bullying Campaign - Speakers Presentations - Keryl Egan - Clinical Psychologist
Source: www.psychology.org.au

27 November 2008

RESEARCH - Bullying at work 2008: The experience of managers

Bullying at work 2008: The experience of managers (November 2008)
A follow-up investigation into 'Bullying as experienced by managers at all levels'

 November 2008
Authors: Patrick Woodman and Dr. Vidal Kumar
ISBN: 0-85946-486-5

Bullying in the workplace is a serious problem for employers. It can have a devastating effect on the individuals involved and impacts on those around them, affecting employee wellbeing, organisational productivity and costs.

Building on research published in 2005, this report further explores the impact of bullying upon managers. It assesses the extent to which managers, as individuals, have been bullied; the types of bullying that they observe in their organisations; and how effective policies can be used to support managers in tackling the problem.
Key findings include:
  • 70 per cent of managers have witnessed instances of bullying in the past 3 years
  • incidents are not just ‘top down’: 63 per cent of respondents observing bullying between peers and 30 per cent witnessing subordinates bullying their manager
  • 42 per cent of managers report having been bullied themselves
  • of those experiencing bullying, more than 1 in 3 (38 per cent) report that no action was taken by their organisation.
The report is based on self-completion questionnaires from 867 managers and leaders across the private, public and voluntary sectors.

Also available : Bullying In The Workplace : Guidance for Managers

24 November 2008

COMMENTARY - Significant damages payout plus costs for sexual harassment claim

Key Points:

Anti-discrimination tribunals and courts are beginning to order more generous payouts

Anti-discrimination tribunals are increasingly prepared to order generous awards for damages.

In the recent decision of Tan v Xenos (No 3) (Anti-Discrimination) [2008] VCAT 584 the Victorian Civil and Administrative Tribunal (VCAT) found that Dr Chris Xenos had sexually harassed Dr Caroline Tan in breach of anti-discrimination legislation. Dr Tan was awarded $100,000 in damages, considered significant in this jurisdiction.

In the associated ruling of Tan v Xenos (Anti-Discrimination) [2008] VCAT 1273, VCAT also ordered the Dr Xenos to pay some of the costs Dr Tan incurred in the lengthy proceedings.


As part of her training to be a neurosurgeon, Dr Tan was employed as a neurosurgical registrar at the Monash Medical Centre. From early August 2004, she moved into a surgical team led by Dr Xenos.

In December 2004, Dr Xenos started inviting Dr Tan to his private rooms. On 15 February 2005, Dr Tan accepted such an invitation. At this meeting, Dr Tan alleged that Dr Xenos sexually harassed her by embracing her, kissing her on the lips, putting his hand down her breast, pinning her against the table, exposing himself and asking her to perform a particular sexual act.

Dr Tan lodged a complaint with the Human Resources Department of the Medical Centre in early 2006. She also made a number of less formal complaints to some of her colleagues after the incident. Eventually, she lodged a complaint in VCAT. Dr Xenos denied the incident took place.


Under section 87 of the Equal Opportunity Act 1985 (Vic) a person must not sexually harass another person at a location that is a workplace for both of them. Sexual harassment includes making an unwelcome sexual advance or engaging in unwelcome conduct that is of a sexual nature.

Judge Harbison concluded that it was more probable than not that the alleged incident took place. The evidence, including that of Dr Tan making a number of complaints following the incident, was consistent with the complaint. It was not consistent with Dr Xenos' submission that the story had been fabricated because of Dr Tan's unsatisfactory performance as a neurosurgeon and her knowledge of likely failure in her training.

In the result, VCAT awarded substantial general damages in the amount of $100,000. The damages award reflected on a financial basis the hurt that Dr Xenos' act caused Dr Tan. VCAT also disavowed the notion that damages awards in the anti-discrimination jurisdiction should be lower than those awarded in comparable cases in other courts.

While there was no medical evidence as to how the incident had affected Dr Tan, Judge Harbison found that Dr Tan had "suffered acutely", was "terribly affected" by the harassment and had reacted, "unusually severe(ly)" to it "as a gross violation of her body and… trust". What is more, while Judge Harbison considered the incident was not the "worst one (could) imagine", Dr Xenos was in a powerful position in which he had "great influence" over Dr Tan's future career and qualification. she also found Dr Xenos had "deliberately and falsely denied the harassment" and sought to impugn Dr Tan's character. She noted that Dr Tan's capacity to enjoy her profession would be "significantly tarnished".

In addition to the significant damages award, Dr Xenos was ordered to pay one-third of Dr Tan's taxed costs.

VCAT can make costs orders when it is fair to do so, based on the consideration of a number of factors. In this case, costs were awarded because the hearing had been "unnecessarily lengthened". Many days had been spent on hearing evidence of Dr Tan's professional capabilities, introduced to support Dr Xenos' claim that the complaint was fabricated - a claim found to be unsubstantiated.


Damages awards in sexual harassment matters have by and large been fairly modest and contained. However, in recent times there has been an emerging trend of anti-discrimination tribunals and courts ordering more generous payouts.

In light of this decision in Tan and other like cases that are expanding the range of damages available in this jurisdiction, it is important that employers remain vigilant in preventing and addressing sexual harassment claims.

The policies and procedures of an employer need to, in a practical and real sense, be understood and adopted by staff from the top down. This means that those who are accountable within the organisation need to know how to identify when there is an issue (whatever the level of severity of the conduct) and understand what action should be taken in the circumstances. To that end, due diligence should be exercised regardless of the rank, seniority and standing of the person complained of. A failure to do so puts an organisation at significant potential risk.


22 November 2008

RESEARCH - Review of Literature on Whistleblowing

1.2.4 Review of Literature on Whistleblowing

2.0 Review of Literature on Whistleblowing
There are two central problems in designing and implementing policies and programs to promote whistleblowing against corruption. The first is how to encourage the "silent majority" of public officials and employees to report a wrongdoing despite the risks. The second is how make whistleblowing effective in creating desired changes in individual, organizational and societal practices. This chapter reviews the theories and practices in whistleblowing to generate insights on these two central problems in whistleblowing.
2.1. Encouraging whistleblowing
Whistleblowing among employees appears to be a rare behavior especially in societies and organizations that do not encourage it as a policy. Impediments to whistleblowing against certain wrongdoings include threats to professional careers and physical security, social ostracism, absence or ineffective legal framework, the lack of evidence, absence of clear procedures on whistleblowing, and the perception that nothing will be done about a reported wrongdoing. Identifying and understanding the factors that deter whistleblowing among individuals offer valuable insights on how to design appropriate and effective whistleblowing policies.
2.1.1 Benefits of whistleblowing
Some authors contend that whistleblowing is ineffective in creating change. For example, Near and Miceli (1995:703) assert that whistleblowing, sometimes, benefits no one and harms many, including the whistleblower who may suffer retaliation. They warn that whistleblowing should not be resorted unless the desired outcomes will be realized.
For all the controversy that it generates, whistleblowing actually produces benefits for organizations and societies. These benefits, however, are mostly left unappreciated in the heat of controversies surrounding many whistleblowing incidents.
Nonetheless, several studies have documented the benefits of whistleblowing. For example, in a survey of federal employees in the United States, Jos, Tompkins, and Hays (1989) reported that whistleblowing resulted in policy, procedural, and personnel changes (Table 11). The authors also noted that whistleblowing led to internal and congressional investigations that ultimately resulted in the criminal indictment and conviction of perpetrators of wrongdoing.
Table 11
Reported effects of whistleblower actions on the organization

Percentage of survey respondents
Total reporting changes within organization
Managerial changes
People transferred/replaced/not reappointed
Personnel practices
Departmental reorganization
Safety improvements made
Policies changed
External Investigations
Outside Agency (FBI, EPA, NRC)
Congressional hearings/investigations held
Criminal investigation
Indictments resulted
Convictions obtained

Source: Jos, Philip. H., Mark Tompkins, and Steven Hays.1989. "In Praise of Difficult People: A Portrait
Of the Committed Whistleblower". Public Administration Review, Nov/Dec.1989; 49, 6; Academic Research
Library, p. 555
Johnson and Kraft (1990) provide an assessment framework for looking at the concrete benefits of whistleblowing (Table 12). Exploring several case studies on whistleblowing incidents in the United States, they concluded that whistleblowing led to : 1) certain changes in the government's policy agenda, 2) some substantive changes in public policies, and 3) changes in bureaucratic and organizational procedures.1 These accounts validate the benefits of whistleblowing as an instrument to bring about certain changes in organizations and the society.
Table 12
Measures for assessing whistleblowing policy impact

Changes in policy agenda

  • How did the policy agenda change in terms policymaker's attention to the problem?

  • How seriously did the policymakers consider the various policy alternatives to address the problem?
Changes in bureaucratic procedures

  • What impact did whistleblowing have on the conditions of the agency?

  • Were there changes in organizational resources, personnel procedures, rules and regulations and the way they were implemented?
Changes in the substance of public policy

  • How was substantive public policy affected, as indicated, for example by public pronouncements or by legislative efforts to formulate or adopt new policies or to clarify existing policy?

Source: Adapted from Johnson and Kraft (1990)
The Criminal Justice Commission of Queensland (Australia) enumerates some of the most important societal benefits of whistleblowing against corruption and other forms of wrongdoing. 2 It asserts that whistleblowing protects and promotes the public good by

  • stopping wrongdoings;

  • stopping other people from being disadvantaged by the wrongdoing;

  • preventing danger to the health and safety of the people;

  • preventing serious damage to the environment;

  • creating an opportunity to put better work procedures into practice which can prevent wrongdoing in the future;

  • bringing to justice the people responsible for wrongdoing.
The Criminal Justice Commission also provides the following organizational benefits of whistleblowing:

  • early identification of conduct needing correction;

  • early identification of weak or flawed systems which make the organization vulnerable to loss, criticism, or legal action;

  • avoidance of substantial financial losses;

  • maintenance of a positive corporate reputation;

  • elimination of a risk to the health and safety of the employees
or the community;

  • maintenance of a positive record on environmental protection;

  • improved focus on accountability of managers and staff.
2.1.2 Personal costs and other key factors affecting whistleblowing
Some scholars have attempted to provide a framework to analyze the various factors that affect or influence an individual's whistleblowing decision or behavior. Schultz et al. (1993), for example, examined the propensity of corporate managers and professionals to report questionable acts in both the domestic and international settings.3 Figure 4 shows their whistleblowing model, which proposes that the chances of actual whistleblowing decline as the perceived personal cost of whistleblowing goes higher, and increase with the perceived seriousness of an issue and the attribution of personal responsibility to report a wrongdoing.
The factors affecting whistleblowing intentions enumerated in the study of Schultz et al. are closely related to the significant whistleblowing variables identified in a recent study by Ayers and Kaplan (2005). Using an experimental approach, Ayers and Kaplan identified four considerations that affect whistleblowing behavior. These factors are 1) perceptions about the seriousness of wrongdoing; 2) personal costs; 3) personal responsibility related to a wrongdoing; and 4) moral equity judgments.4
Figure 4
A Model of Reporting Questionable Acts
(Adapted from Schultz et al. 1993)

Seriousness of a wrongdoing and whistleblowing. Whistleblowing will likely occur when people are more aware and actually feel that a wrongdoing has become more harmful to the organization. Perceptions on the seriousness of a wrongdoing are subjective, however. They are influenced by several factors.
One of these is the prevailing organizational or societal value. When the dominant organizational or societal value accepts or tolerates wrongdoing, then whistleblowing will not likely occur. In a survey on corporate wrongdoings conducted by the Asian Institute of Management-Ramon V. del Rosario Center for Corporate Responsibility (2004), for example, the findings reveal that majority of the senior executives (57 percent) believe that "keeping quiet" on a wrongdoing is not "always wrong".5 In one survey of the Social Weather Stations also, bribery is perceived by some businessmen as a standard business practice.
Although a potential whistleblower may perceive that a wrongdoing is serious enough, whistleblowing will not automatically occur especially in the absence of a clear and convincing evidence of the wrongdoing. When the whistleblower holds strong evidence about a corrupt practice, it strengthens his or her belief that the wrongdoing is serious enough and need to be reported.
Perceptions of the seriousness of a wrongdoing may also be influenced by clear policy standards on what constitutes wrongdoing. Laws defining corrupt acts, for example, may provide cues to the potential whistleblower in deciding whether observed wrongdoing is serious or not.
Personal responsibility and whistleblowing. When people are aware and feel that it is their responsibility to report a wrongdoing, they are more likely to blow the whistle. The attribution of personal responsibility to report is an important explanation why people have a higher propensity to report a questionable act compared to others. In a study of internal auditors in the United States and Canada, Miceli, Near and Schwenk (1991) reported that "subjects were less likely to report incidents when they did not feel morally or by role prescriptions to do so". This finding is at odds with the ideal concept of whistleblowing as a voluntary act on the part of the individual. Nonetheless, for the purpose of encouraging whistleblowing as a policy in order to fight corruption, it may be worthwhile to explore the pros and cons of making whistleblowing as a legal obligation of public officials and employees. In addition, it may also be desirable to enhance existing protections given to role-prescribed whistleblowers such as Internal Auditors and Compliance Officers.
Personal costs and whistleblowing. Whistleblowing rarely occurs as the personal costs of reporting rise. When people perceive that the personal costs have become very high, then they will not blow the whistle. This insight does not mean, however, that when personal costs exceed expected benefits, then no whistleblowing will take place. It only means that there are thresholds of tolerable personal costs wherein people are still courageous or willing enough to blow the whistle. Beyond this threshold of tolerance, whistleblowing will be very rare, if it will happen at all.
The fear of retaliation is the major impediment to whistleblowing. This is one of the main reasons why many people prefer to stay silent than blow the whistle against observed wrongdoings. Table 13 shows the most serious forms of retaliation experienced by whistleblowers. Among these are loss of job, reduction of salary or job responsibilities and harassment in the workplace. Ostracism in the workplace is also one of the most burdensome consequences of whistleblowing. Overall, these consequences of whistleblowing deprive the individual of much-needed social support and personal comfort. Expectations of these difficulties will discourage individuals from blowing the whistle.
Table 13
Most serious forms of retaliation experienced by whistleblowers

Form of retaliation
Percentage of survey respondents
Loss of job
Job responsibilities or salary reduced
Harassment, transfer
Job responsibilities changed
Work more closely monitored
No retaliation

Source: Jos, Philip. H., Mark Tompkins, and Steven Hays.1989.

The absence of effective legal protection for whistleblowers increases the personal costs of and deters whistleblowing. In a survey of New South Wales (Australia) public sector employees, it was reported that 76 percent of the respondents said they would either be unlikely to, or definitely would not, report corruption in the absence of legal protection. 6 About 67 percent of respondents agreed that "legal protection makes it easier for them to consider reporting corruption".
Perceptions of the personal costs and of whistleblowing may differ among cultures. The differences may be explained by the dominant value judgments with regard to existing practices. One culture may accept a certain business practice, for example, but in another context, such practice would be viewed as questionable (Schultz et al. 1993:80). The differences in value judgments with regard to certain practices may also affect employee's assessment on whether to report a wrongdoing.
Organizational culture is another factor affecting people's propensity to blow the whistle against observed and perceived forms of wrongdoing. As "collective programs", organizational culture contains values that direct not only people's awareness and attitudes of "good" and "evil" acts, but also contribute to the "tolerance of principled dissent in the organization". 7
People will not also be willing to blow the whistle when authorities, whether internal or external to the organization, habitually fail to act on reported wrongdoings. The perception that nothing will be done about a reported wrongdoing may contribute to the potential whistleblower's fear of retaliation from powerful wrongdoers.
2.1.3 Frameworks on whistleblowing effectiveness
Policies designed to encourage whistleblowing must consider the factors that facilitate or constrain it. In addition, they must address the issues that impede the effectiveness of whistleblowing in correcting or terminating reported questionable practices. Understanding the whistleblowing process provides valuable guidance in designing such policy.
The whistleblowing process has been explored in considerable depth by some scholars. Near, Dworkin, and Miceli (1993) employed the concepts of justice and power to make some sense of the whistleblowing process.
Justice framework. This framework explains the reactions of various parties to whistleblowing. It uses the concepts of procedural and distributive justice to understand the reactions of parties to whistleblowing incidents. The concept of "procedural justice" guides stakeholders' perceptions of "satisfaction" or "dissatisfaction" with the system of whistleblowing (Near, Dworkin, and Miceli 1993). "Distributive justice" concerns determine feelings of satisfaction or dissatisfaction with the outcomes of whistleblowing. The justice framework offers the following insights on whistleblowing effectiveness.
Procedural justice

  • The organization's fairness in administering the procedures for dealing with whistleblowing incidents determines the whistleblower satisfaction or dissatisfaction with the whistleblowing system.

  • Members of the organization will perceive that there is procedural justice when the whistleblower follows "fair" reporting procedures, probably reporting the wrongdoing through internal channels than making it public knowledge by reporting it to some outside agency or the media.8
Distributive justice

  • The whistleblower will be satisfied with the outcome of his/her whistleblowing when the organization corrected or terminated a wrongdoing and did not retaliate against him or her. 9

  • The members of the organization will be satisfied with the whistleblowing when they feel that the organization was not harmed by the wrongdoing and the whistleblowing.
Power-relations framework. This framework views whistleblowing as an "influence process" that affects the "balance of power within an organization".10 According to this framework, a whistleblower tries to convince the members of the organization or its dominant coalition to change an existing practice because it constitutes a wrongdoing. The organization can either terminate or continue with the challenged practice, depending on how powerful or influential the whistleblower is in the organization. Lacking power, the whistleblower may be punished for his or her "activism" that may rock the stability and challenges the power structures in the organization. Thus, for Near and Miceli (1995:686), the whistleblower's effectiveness in producing the desired changes depends partly on the power he or she possesses in the organization.
Whistleblowing involves the dynamic interaction of several parties. Near and Miceli (1995) offers the following simple framework to understand this process of interaction.
Figure 5
A model of the whistleblowing process
As Figure 5 shows, whistleblowing effectiveness will be determined by the combined outcomes of the six (6) interactions:

  • between the whistleblower and the complaint recipient;

  • between the whistleblower and the organization;

  • between the whistleblower and the wrongdoer;

  • between the complaint recipient and the wrongdoer;

  • between the complaint recipient and the organization;

  • between the wrongdoer and the organization.
In turn, the outcomes of these interactions will depend on the characteristics of the five (5) primary actors in whistleblowing (Near and Miceli 1995:681).

  • Characteristics of the whistleblower;

  • Characteristics of the complaint-recipient;

  • Characteristics of the wrongdoer;

  • Characteristics of the wrongdoing;

  • Characteristics of the organization.
The influence of individual and situational variables on the outcome of whistleblowing is shown in Figures 6 and 7. Essentially, the credibility and power of whistleblowers, complaint recipients, or wrongdoers affect the overall outcome of a whistleblowing incident. The organizational and societal support to whistleblowers or wrongdoer is also crucial in determining the outcomes of whistleblowing. Lastly, the willingness of the organization to change a questionable practice determines whistleblowing effectiveness.
Figure 6
Individual variables that affect the outcome of whistleblowing
(Source: Near and Miceli.1995. Effective Whistleblowing, p. 682)
Figure 7
Situational variables that affect the outcome of whistleblowing
(Source: Near and Miceli. 1995. Effective Whistleblowing, p. 683)
In addition to individual variables, situational variables also influence the outcome of the whistleblowing process. Two variables are crucial: the characteristics of the wrongdoing and the characteristics of the organization. The level of organizational dependence on a wrongdoing, the availability of convincing evidence of wrongdoing, and the legal basis for the whistleblowing may influence its outcomes.
Other important factors affecting whistleblowing effectiveness are 1)organizational perceptions on the "appropriateness of whistleblowing", 2) the existence of a climate favorable to whistleblowing, 3) the existence of less bureaucratic organizational structures, 4) organization's power relative to its external environment, and 5) the whistleblower's choice of whistleblowing channels (internal or external).
2.1.4 Theoretical insights on whistleblowing policy design
The main challenges in whistleblowing policy design are 1) encouraging individuals with information about a wrongdoing to blow the whistle, and 2) making whistleblowing effective as an instrument of change. The literature contains rich insights on these core problems in whistleblowing. Among these are the following:

  • Achieve overall system satisfaction.

  • Improve legal standards on protected whistleblowing.

  • Reduce the costs of whistleblowing.

  • Create effective societal and organizational structures.

  • Promote role-prescribed whistleblowing.

  • Enhance whistleblowing skills.
Achieve system satisfaction. Many policy initiatives to encourage whistleblowing generally fail because they focus only on satisfying the concerns of whistleblowers; the concerns of the other parties such as managers and fellow employees are largely neglected (Near, Dworkin and Miceli 1993:396). Currently, the dominant approach to encourage whistleblowing is to protect whistleblowers and establish procedures that will facilitate whistleblowing. Such interventions are not enough to increase the supply of whistleblowers to counter the massive corruption in some societies and organizations.
The key to encourage whistleblowing, according to Near and Miceli (1995), is to achieve overall system satisfaction, which can create a much safer environment for whistleblowers. To achieve system satisfaction, policies must satisfy the procedural and distributive justice concerns of both the whistleblowers and the other parties to whistleblowing incidents.

  • Satisfying the concerns of whistleblowers. Policies must ensure that organizations establish and provide fair procedures for whistleblowing by employees. In addition, the policies must address the distributive concerns of whistleblowers, i.e., making sure that reported wrongdoings are acted upon. The policies must ensure that whistleblowers will not suffer from retaliation as a result of reporting wrongdoings that pose serious harm to the public or organizational interests.
For whistleblowers, satisfaction and continuing confidence on the whistleblowing system will come from perception that society and organizations have fair and user-friendly procedures for reporting and responding to reported wrongdoing. The whistleblowing system must ensure that whistleblowers will be amply protected, if not rewarded, when they blow the whistle against serious forms of wrongdoing.

  • Satisfy the procedural and distributive concerns of the other parties to whistleblowing. The policies must provide certain incentives for whistleblowers to follow the prescribed and legitimate procedures for whistleblowing, probably giving the organization the first opportunity to correct the wrongdoing. Policies to encourage whistleblowing must raise awareness and appreciation of the individual, organizational, and societal benefits of whistleblowing. Addressing the concerns of stakeholders will help produce a favorable response to whistleblowing (ibid., p. 397). Policies must mandate the adoption and implementation of programs to promote the value of whistleblowing to all stakeholders.
Improve legal and organizational standards on protected whistleblowing. Whistleblowing will be more effective when whistleblowers report activities that are clearly illegal compared to those that are merely unethical or immoral (Near and Miceli 1995:698). In one survey, majority of respondents expressed higher preference for whistleblowing against illegal-as compared to merely unethical--activities (Callahan, Sangrey and Collins 1995:942). In the same study, 75 percent of respondents believed that an employee who is terminated for informing the news media of an employer's illegal activity should be protected. In comparison, only 61 percent of respondents asked for whistleblower's protection for those who report unethical practices.
Laws that define the forms of wrongdoing that are illegal also empower complaint-recipients to act on whistleblower's disclosure.
Whistleblowing will be more effective in organizations with ethical climates that discourage wrongdoing, encourage the reporting of wrongdoing, and discourage retaliation against whistleblowers (Near and Miceli 1995:701). The ethical climates in organizations influence perceptions of the appropriateness of whistleblowing (Near and Miceli 1995:700). In general, if the organizational climate discourages wrongdoing, then employees will be more encouraged to report a wrongdoing.
When stakeholders perceive that the whistleblower's action is appropriate, then whistleblowing will be more effective in producing the desired changes. When coworkers, management, and the complaint recipient believe that organizational norms allow or even encourage the reporting of a wrongdoing, then whistleblowing will be more effective. But, if stakeholders perceive that the whistleblower's actions have breached the bounds of appropriateness, whistleblowing will be resisted regardless of its benefits. Policy interventions, therefore, must encourage organizations to adopt organizational cultures and practices that make whistleblowing legitimate, appropriate, and socially rewarding.
Reduce the costs of whistleblowing. Whistleblowing has personal costs that will make whistleblowing a rare behavior among individuals. Mitigating these costs will increase the individual's use of whistleblowing as an instrument for correcting or terminating wrongdoings. A holistic policy on whistleblower's protection is an essential step in reducing the costs of, and encouraging, whistleblowing. Policies must also establish programs to promote the value of whistleblowers for organizations and the society.

  • Counter the negative perception that whistleblowers are "harmdoers". Some people in powerful positions view a whistleblower as "harmdoer" when he or she reports directly to an external public authority or to the media, about alleged wrongdoing. According to the view, a whistleblower makes the first "public attack" against an organization although he or she may be making a legitimate protest against a questionable organizational practice that poses serious harm to the public or even organizational interest.11 This negative view serves as justifications for retaliating against whistleblowers. To counter this view, whistleblowing policies must mandate the adoption of programs to promote the value of whistleblowers in uncovering anomalies that would do more serious damage to the public or even organizational interest if left not corrected. They must also provide incentives (e.g. state protection) for whistleblowers to use official channels for airing allegations of wrongdoings.

  • Prevent retaliation. Policies and programs to encourage whistleblowing must be able to prevent harassment, reprisals and other forms of retaliatory actions, which are major impediments to whistleblowing. Society can reduce the personal costs of whistleblowing by establishing the rights of, and providing legal remedies for retaliatory actions against, whistleblowers.

  • Cultivate social support. Policies and programs must help cultivate societal and organizational support, which are far more effective strategies in preventing retaliation against whistleblowers. They can enhance such support by increasing awareness of the benefits of whistleblowing and preventing damage to the reputations of individuals and organization from unsubstantiated allegations of wrongdoings.

  • Increase personal benefits. Organizations and society must increase the personal benefits of whistleblowing. The level of expected benefits must be convincing enough to help the whistleblower decide in favor of whistleblowing despite the presence of risks. Attractive incentives, in whatever form, should be provided to encourage whistleblowing.
Create powerful societal or organizational structures for whistleblowing. The work of Near and Miceli (1998) on effective whistleblowing underscores the value of powerful complaint-recipients in making whistleblowing effective.
Like whistleblowers, complaint-recipients also make some calculations on whether to act on the reported wrongdoings. They must determine 1) whether wrongdoing has really occurred, 2) whether they are responsible for acting, and 3) whether they have the power to change the wrongdoing.
When they are powerful enough, complaint-recipients may use "efficacious actions" to address a reported wrongdoing, but only when they support the whistleblower (Near and Miceli 1995:694). A powerful complaint-recipient, who is supportive of the whistleblower, enhances the whistleblower's credibility (ibid., p. 693), thus increasing overall whistleblowing effectiveness.
Near and Miceli (1995:702) also hypothesize that whistleblowing is more effective in organizations with more formal (written) mechanisms of encouraging whistleblowing.

  • Allow graduated levels of anonymous or confidential whistleblowing. Anonymity may either enhance or decrease whistleblowing effectiveness (Near and Miceli 1995:692). On the one hand, it can increase whistleblowing effectiveness by reducing the likelihood of retaliation against whistleblowers and by preventing attacks against the motivations of whistleblowers who have questionable characters but, nonetheless, provided valuable information about wrongdoings. On the other hand, anonymity reduces the credibility of the complaint itself; it raises suspicions about the value of the disclosed information and the motive for whistleblowing. Anonymity makes it also difficult for complaint-recipients to seek additional evidence to validate the whistleblower's allegations of wrongdoing, reducing whistleblowing effectiveness in the process.
The proper policy approach towards anonymity and confidentiality may depend on the existing organizational climates. When the organizational climate is unsafe for people who challenge authority structures for perpetuating questionable practices, then anonymous whistleblowing can be a safer alternative to encourage individuals to disclose information about observed wrongdoing. Confidential whistleblowing to authorized complaint-recipients, inside or outside organizations, can also be encouraged especially when organizational norms that discourage wrongdoing already exist.
Whistleblowers who have the courage to reveal themselves to complaint-recipients may increase perceptions about their credibility and facilitate the complaint-recipient's investigation.

  • Allow several channels for whistleblowing. Internal whistleblowing will be less effective especially when the organization exhibits great dependence on a questionable practice. When the organization is highly dependent on the wrongdoing for its survival, top management may be unable to terminate a protested wrongdoing. In such cases, external whistleblowing will be more effective in correcting or terminating a wrongdoing (Near and Miceli 1995:695-697).
Using a justice framework on whistleblowing, organizations must develop consensus not only on internal whistleblowing procedures, but also on the criteria and procedures that would make it legitimate for employees to use external whistleblowing channels.
Promote role-prescribed whistleblowing. The likelihood of whistleblowing depends on the attribution of personal responsibility to report wrongdoings (Schultz et al. 1993). Thus, to encourage whistleblowing, society and organizations need to mandate it as part of an employee's responsibilities.
Some existing studies also hypothesize that role-prescribed whistleblowers are more effective in correcting or terminating wrongdoings because their whistleblowing is seen as more legitimate (i.e., they are just doing their job). Role-prescribed whistleblowers, such as Internal Auditors, are also less prone to retaliation because they can offer more socially acceptable and legitimate reasons for whistleblowing; they can use "ideological accounts" to convince stakeholders that their whistleblowing only complies with societal dictates to report organizational wrongdoings although organizations themselves may suffer certain consequences (Near, Miceli and Dworkin 1993:405).
Whistleblowing can also be prescribed as a duty of leaders and managers of organizations, to make it more effective. Using a theory of resource dependence, Near and Miceli (195:687) hypothesize that whistleblowers who occupy leadership positions or have expertise are likely to be more effective in stopping questionable practices. This is because of the organization's dependence on their resources (leadership, expertise, etc.) In addition, using the theory of value congruence, Near and Miceli assert that whistleblowers who have the same values as the organization's management will be more influential in stopping organizational wrongdoings. The effectiveness of role-prescribed whistleblowers can also be explained by their legitimate organizational power to reward or coerce (Near and Miceli 1998).
Policy initiatives to prescribe whistleblowing as an employee's duty may have the same effect as legitimizing role-prescribed whistleblowing status (Near and Miceli 1998).
Improve whistleblowing skills. Whistleblowing will be more effective when the evidence of a wrongdoing is convincing. Written documentation and other clear evidence of a wrongdoing will make whistleblowing more effective because they enhance the credibility of the whistleblower and his/her disclosure. Strong evidence will also make it easier for the whistleblower to convince the complaint recipient to act on the reported wrongdoing (Near and Miceli 1995:697. These insights suggest that whistleblowing policies must mandate the adoption and implementation of programs designed to increase the knowledge and skills of whistleblowers in using the official channels and procedures for whistleblowing.
1 Johnson, Robert Ann and Michael Kraft.1990. "Bureaucratic Whistleblowing and Policy Change". The Western Political Quarterly, Vol. 43, No. 4 (Dec.),pp. 849-874
2 Criminal Justice Commission.1999. Exposing Corruption: A CJC Guide to Whistleblowing in Queensland. Available: http://www.cmc.qld.gov.au/data/portal/00000005/content/30223001131406950275.pdf
3 Schultz, Joseph Jr., Douglas Johnson, Deigan Morrisand Sverre Dyrnes.1993. "An Investigation of the Reporting of Questionable Acts in an International Setting." Journal of Accounting Research, Vol.31, Studies on International Accounting, pp. 75-103. The authors used an experimental study in which subjects were asked to judge the likelihood of reporting a questionable act and to assess the personal responsibility to report. Each subject completed six case studies. The subjects consisted of 145 managers and professional staff from public companies in Norway and the United States and from wholly owned US subsidiaries in France.
4 Ayers, Susan and Steven Kaplan.(2005)."Wrongdoing by Consultants: An Examination of Employees Reporting Intentions." Journal of Business Ethics, Volume 57, pp. 121-137
Source : www.aim-hills.ph
5 Opinion Survey of Senior Executives conducted by the RVR Center for Corporate Responsibility, Asian Institute of Management
6 Whistle-blowing: An effective anti-corruption tool? Available: http://www.iss.co.za/Pubs/CRIMEINDEX/99VOL3NO3/ WhistleBlowing.html. Published at Nedbank ISS Crime Index, Volume 3, 1999, Number 3, May-June.
7 Hofstede 1985 as cited in Schultz et al. (1991:79-80)
8 Near, Dworkin, Miceli 1993:395-396)
9 ibid, p. 395
10 Near, Dworkin & Miceli, 1993:394
11 Near, Dworkin and Miceli (1993:405)